Wednesday, June 30, 2004

Constitutional Ideals & Compromises on Religion:

Here is my response to Dennis Teti’s objections to my claims on the founding and religion:

Dennis,

I think it’s fair to assert that Jefferson’s VA Statute on Religion and Madison’s Memorial and Remonstrance represent certain natural rights “ideals” upon which this nation was founded. I think that the standard that you posit for what constitutes an ideal—“a philosophic or systematic treatise on the question of government and religion [or whatever],” is too strict. It’s true that both of these documents “are pieces of ‘practice’ as part of a political debate,”—but so was the Declaration of Independence. And it’s likewise true that the VA Statute was written “to satisfy the lawmakers and interest groups involved in its passage” and the Mem/Rem “was written in the name of a group of subscribers who all had to be satisfied,”—but again, we can say the same (or something very similar) about the Declaration. Indeed, our critics from both the left and the right—those who do not believe in the legal authority of the Declaration—argue that it was just a statement of political rhetoric, something needed to list our grievances against England and give some sort of quasi-legal authority to justify the revolution. But we argue that the Declaration is something more—a statement of natural rights that no government—federal, state, local, or international—may properly infringe, and of “organic law” that undergirds our founding. Finally, we call it a statement of “ideals,”—or at the very least, a document that perfectly recites certain foundational “ideals.”

And the Declaration, like Jefferson’s VA Statute, initially contained other language first offered by Jefferson, but that had to be altered because of political disagreement. I think what is key about both the Declaration and the VA Statute is that while there were political compromises involved in tweaking the language and all that, from an historical analysis, there is no evidence that any ideals were compromised in any significant way, and there is much evidence that these “natural rights” ideals made it into both documents to the great satisfaction of Jefferson. For one, Jefferson believed his three greatest accomplishments were (not in any particular order) 1) the Declaration of Independence, 2) the founding of the University of VA, and 3) the VA Statute on Religion. Jefferson does not mention, for instance, that the VA criminal code that he helped revise—certainly a law that had to satisfy many politicians who weren’t exactly likeminded to him—as one of his crowning achievements as he does these other three accomplishments. (And we all know what controversial language that criminal code contains.)

Finally, you say that the religion statute is simply “an ordinary state law” (boy you really sound like a strict legal positivist here), but the statute claims to be much more: It states “that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.”

Thus, it’s possible for something to be both a political document—drafted to perform a particular function—and to perfectly encapsulate certain “natural rights” ideals as well, which is what the VA Statute claims to do and what the Declaration clearly does. Now, the Constitution was drafted to secure these natural rights as well, but it did so in a clearly imperfect way—therefore it represented not only the natural rights ideals, but also political compromises with them—the Constitution compromised in ways that neither the Declaration nor the VA Statute did. And slavery wasn’t the only natural right that was compromised with in the Constitution, so were the rights of conscience (In other words, Jaffa’s statement about “ideals” and “compromises” logically applies here as well).

The bottom line is this: The rights of conscience—“liberty” and “equality” of conscience,—are the most fundamental—the most inalienable if you will—natural rights that our founders were concerned with when we Declared our Independence. The entire First Amendment—all of its clauses—as originally understood, restricted the federal government only only. Therefore, states were free not only to enact establishments, but also to prohibit free exercise and impose religious tests, which many of them did. But the rights of conscience are natural rights! Madison was perfectly aware of this. And this is why his first draft of the First Amendment prohibited the states from violating, “the equal rights of conscience.” But that was voted down for political reasons.

It’s true that the term “establishment” may have meant something relating to particular sects only—or it may have meant more (See Leonard Levy, Origins of the Bill of Rights, Chapter Four). (Madison certainly desired that it mean something more than what ended up in the text). But we have more that just the “historical understanding” of the term “establishment of religion” to make our case. We also have the Declaration of Independence with its organic natural law. And we have the 9th Amendment which tells us that there are certain unenumerated rights—which Randy Barnett argues are synonymous with natural rights—that the federal government may not violate, and we also have the “privileges or immunities clause” of the 14th Amendment—again another gateway to natural rights—that the states must follow.

These provisions can serve to buttress, or “pick up the slack” of any separation of church and state claim that the Establishment Clause, with its peculiar historical understanding, may leave off.

The next question that must be answered is what must a state do in order to be the guarantor of “the equal rights of conscience?” Can a state that establishes or endorses a religious sect or that aids religion over non-religion, etc., etc., still guarantee the rights of conscience at the same time? This is a topic of another discussion. But I will conclude by asserting that Jefferson & Madison believed that only a state that enacted “a perfect separation between Church & State” in Madison’s words (or built a “wall of separation…” in Jefferson’s)—one that took no stand on the matter of religion—could effectively guarantee the rights of conscience.

(See my posts that I first made while guest blogging on Timothy Sandefur’s Freespace where I deal with this issue in more detail:

Everson was consonant with our original principles

Religion and our Founding—Buttressing the 1st Amendment with the 9th and 14th)

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